January 31, 2005

Abandoning Liberty, Gaining Insecurity

Should Americans have to give up the Bill of Rights in order to be "safe" from terrorists? Actually, it doesn’t matter what Americans think. The trade has already been made—and without any input from the people. The "democracy" that America is exporting is in fact a Homeland Security State with more surveillance powers than Saddam Hussein.

Americans no longer have any privacy from government. You may not be able to find out about your daughter’s abortion or your son’s college grades, but neither you nor your children have any secret whatsoever from your government. Banks, airlines, libraries, credit card companies, medical doctors and health care organizations, employers, Internet providers, any and everyone must turn over your private information at government demand.

Government demand no longer means a court approved warrant. A myriad of intelligence, security, military, and police agencies can on their own volition mine your personal data and feed it into data banks. Your democratic government does not have to tell you. Your bank, library, etc., are forbidden to tell you.

The government can monitor you as you use your computer, noting the web sites that you visit and reading the emails that you send and receive. Americans have privacy rights only against intrusions by private individuals and private organizations.

In 2000 Larry Stratton and I published a book documenting the erosion of all of the legal principles that protect the innocent: no crime without intent, the attorney-client privilege, due process, and the prohibitions against retroactive law and self-incrimination. The law was lost before the September 11 terrorist attack on the US.

The Patriot Act and executive branch decrees have put paid to habeas corpus. The government can pick up anyone it wishes and hold them as long as it wishes without evidence or trial. The government can torture those so detained if it wishes or murder them and say it was a suicide. Saddam Hussein may have indulged in these practices in a more thorough-going way than the US Homeland Security State has to date, but there are no essential differences in the police state powers.

While granting an element of truth, readers may see rhetorical overstatement in these words. This is because they believe, mistakenly, that the Supreme Court reined in the government in its rulings last June 28 on permitted treatment of "enemy combatants." However, as Harvey Silverglate has pointed out, this is not the case.

Silverglate’s analysis shows that the Supreme Court’s rulings "preserve the look and feel of liberty while sacrificing its substance." The rulings left the government with enough flexibility to prevail. One ruling created for the government a flexible due process standard invoking, in the Court’s words, "the exigencies of the circumstances" and creating "a presumption in favor of the Government’s evidence." Silverglate notes that this ruling overthrows a defendant’s presumption of innocence that formerly could be overcome only by evidence proving guilt beyond reasonable doubt. [Civil Liberties and Enemy Combatants, Reason Magazine, January 2005]

Another of the Supreme Court’s rulings supported the government’s position that a US citizen can be declared an enemy combatant and held without charge. Justice O’Connor found support for the demise of habeas corpus in the Authorization for the Use of Military Force passed by Congress after the September 11 attacks.

Defenders of the new American police state emphasize that the government’s new powers only apply to terrorists. This is disingenuous. The government decides who is a terrorist and does not need to present evidence to back its decision. The person on whom the arbitrary decision falls can be held indefinitely. This is a return to the pre-Magna Carta practice of executive arrest.

Are Americans in such danger of terrorist attacks that they needed to give up legal protections won over eight centuries of struggle against the arbitrary power of governments? Surely not.

Terrorists have achieved their aims. Bringing down the World Trade Center towers gave them a great propaganda victory. Any other American target would be anti-climatic. The US invasion of Iraq gave them an opportunity for revolution in the Middle East—the real focus of their energy.

What Osama bin Laden and others of his persuasion desire is a unified Islamic Middle East shorn of US bases and puppet rulers. The US invasion of Iraq has brought Shias to power and created a Shia crescent from Iran to Lebanon. The ground is shaking under the perches of US puppets in Egypt, Jordan and Pakistan. The US demonstration of "shock and awe" in Iraq sealed Muslim hearts and minds against America and opened them to bin Laden.

The Bush administration handed these enormous opportunities to bin Laden on a silver platter. These opportunities, not terrorism in America, will absorb the energies of those seeking to build a new Islamic world in the Middle East.

Americans fearful of terrorism should keep in mind that their country is a very large place. If further terrorist attacks occur, very few Americans are likely to witness them except on TV. The police, however, are everywhere, and like all bureaucracies will have to show results for their new powers. If no real terrorists show up, our protectors will invent them, or they will interpret their powers expansively and apply them to ordinary felonies.

For example, Child Protective Services was set up on the pretense that child abuse was rampant. It was not, so the vast bureaucracy has had to invent its clients. Playground and sports bruises, injuries from falls and accidents all become evidence of child abuse, justifying CPS seizure of children from parents.

RICO, the Racketeer Influenced Corrupt Organizations Act, was only supposed to apply to the Mafia, but quickly jumped outside these bounds. Asset forfeiture was only supposed to be used against drug barons, but has mainly been used to seize the property of Americans unconnected to the drug trade.

Americans might never again experience a domestic act of terrorism except from their own police state.

Paul Craig Roberts is the author with Lawrence M. Stratton of The Tyranny of Good Intentions : How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice. Click here for Peter Brimelow’s Forbes Magazine interview with Roberts about the recent epidemic of prosecutorial misconduct.